Statutory guidance on calculating the national minimum wage

The Government has updated its statutory guidance on calculating the National Minimum Wage (NMW). This provides practical advice and examples to explain:

eligibility for the NMW;

how to calculate the NMW;

working hours for which the NMW must be paid; and

how the NMW will be enforced.

The section on working hours for which the NMW must be paid covers sleeping between duties and has been updated to reflect recent case law on this aspect of the legislation. It provides an example of when the NMW is likely to apply and an example of when it is not.

Example 1 is where a person works in a care home and is required to work night shifts during which they can sleep on the premises. The employer is required by law to have someone present for health and safety purposes and the worker would be disciplined if they left the premises at any time during their shift. It is likely that a worker in such circumstances would be considered to be 'working' for their entire overnight shift, even when they are sleeping.

Example 2 is where a person works in a pub and is provided with accommodation upstairs. The employer requires the worker to sleep on the premises, to reduce the likelihood of a break-in, but he or she is free to come and go provided they fulfil this requirement. The worker does not have any specific responsibilities during the evening. In this scenario, the person is likely only to be entitled to the NMW for any night time hours when they are awake and dealing with an emergency.

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